Debarre v. Tway

270 P. 618, 46 Idaho 474, 1928 Ida. LEXIS 122

• Court: Idaho Supreme Court
• Decided: July 6, 1928
• Docket: No. 4928.
• Status: Published

Opinion

BRINCK, Commissioner.

Plaintiff brought suit against defendant to recover upon a promissory note executed by defendant, of which plaintiff claimed to be the holder by indorsement. Appellant intervened in the action, claiming to be the owner of the note, and prayed judgment against defendant thereon. Prior to trial, defendant paid the note to plaintiff, and upon the trial, judgment was entered for defendant and against intervenor, and intervenor appeals.

The only errors urged are as to alleged insufficiency of the evidence to support the judgment. Appellant introduced in evidence the note in question, bearing the indorsement of the payee to the plaintiff. The note was produced from the files of the probate court, where the action had been commenced and first tried, and there is no showing as to who was in possession of the note prior to its original introduction in evidence. Appellant offered no proof of his ownership of the note in question, except an original judgment in a case brought by intervenor against the plaintiff, to which defendant was not a party, and rendered a considerable time after defendant had paid the note to plaintiff. What this judgment was does not appear from the record, since appellant neither caused the same to be copied into the record nor supplied a certified copy thereof as provided in C. S., sec. 6886, subd. 4. So far as the record shows, the evidence was insufficient to support any judgment other than that entered.

We recommend that the judgment be affirmed. Costs to respondent.

Baker, C., concurs. Varian, C., took no part in the decision.

The foregoing is approved as the opinion of the court. The judgment is affirmed, with costs to respondent.

Wm. E. Lee, C. J., and Givens, Taylor and T. Bailey Lee, JJ., concur.

Petition for rehearing denied.